BRINDAMOUR v. MURRAY PORTER

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District Court of Appeal, Second District, Division 2, California.

BRINDAMOUR et al. v. MURRAY et al. (PORTER, Intervener).*

Civ. 10060.

Decided: December 13, 1935

Ray L. Chesebro, City Atty., Frederick Von Schrader, Asst. City Atty., and Albert E. Wheatcroft, Deputy City Atty., all of Los Angeles, for appellants. Henry Davidian, of Los Angeles, for respondents.

This is an appeal from a judgment for damages sustained by plaintiffs as the result of an automobile collision. The defendant Murray was a captain in the police department of the city of Los Angeles and was driving a car which belonged to the city. His hours of work on the day of the accident were from 8 o'clock in the morning to 5 o'clock in the evening. He left the police station at 5 p. m. with the city's car, drove to his home where he met his wife, and they came downtown, visited with a friend for a while, and then had dinner at a restaurant on Broadway. The accident happened at 11:20 p. m.

It is the contention of the defendant city that it is not liable unless its car at the time of the collision was being driven by its employee acting within the scope of his employment. On the other hand, plaintiffs contend that the city would be liable for the negligence of the driver of a car owned by the city if such driver were in fact an officer, agent, or employee of the city, irrespective of whether or not he was operating the car within the scope of his authority. The city of Los Angeles contends that to place such a construction upon section 17141/212 of the Civil Code would necessitate holding such section unconstitutional and therefore void for the reason that it would impose liability merely by virtue of ownership of the vehicle regardless of whether its use was authorized.

The plaintiffs' cause of action in this case is measured by the provisions of section 17141/212 of the Civil Code, which reads, in so far as it is pertinent hereto, as follows: “Hereafter, * * * every * * * municipal corporation, * * * owning any motor vehicle shall be responsible to every person who sustains any damage by reason of death, or injury to person or property as the result of the negligent operation of any said motor vehicle by an officer, agent, or employee or as the result of the negligent operation of any other motor vehicle by any officer, agent or employee when acting within the scope of his office, agency or employment.”

This section of the Code has already been construed in the case of Woodman v. Hemet Union High School, etc., 136 Cal.App. 544, at page 551, 29 P.(2d) 257, 261, where the court said: “Section 17141/212 of the Civil Code provides a liability on the part of a school district owning a motor vehicle for damages by reason of death or injury to person or property resulting from the negligent operation of such motor vehicle by its officer, agent, or employee when acting within the scope of his office, agency or employment. This section would seem to restrict actions brought under it to those cases where the injury was caused by a motor vehicle * * * negligently operated by an * * * employee of the district * * * acting within the scope of his office, agency or employment.” We are satisfied that under a fair and reasonable construction of said section the city would not be liable under the circumstances of this case unless its employee was acting within the scope of his employment. There is an absence of evidence in the record that its employee was so acting.

The judgment is reversed as to the city of Los Angeles, and affirmed as to the defendant Murray.

CRAIL, Presiding Justice.

We concur: WOOD, J.; McCOMB, Justice pro tem.